*1 Instead, that, implication raised in instant case. under issue circumstances, distinguishes facts and that between certain statute may commercial and noncommercial withstand constitutional speech muster.
Finally,
tailoring
I
requirement
believe
narrow
is satis-
promotes
government
fied because
a substantial
the statute
interest
effectively
regulation.
that would be
less
absent
achieved
Ward,
citing
U.S. at
105 L. Ed. 2d
109 S. Ct.
Albertini,
86 L.
United States
U.S.
Ed.
S. Ct.
targets
problem
The statute
noise from
excessive
“boom
problem
box cars”
at the same
eliminates that
without
time
banning
significantly restricting
quantity
substantial
Ward,
problems.
not create
speech
does
thе same
U.S. at 799
n.7,
n.7,
In conclusion, even sound though amplification statute distin- guishes among speakers, I it is a regula- believe that content-neutral representing proper police tion power exercise state’s provide peace, the relative ánd of all tranquility safety its citizens. I Consequently, uphold would the statute. TRUST,
FIRST Special BANK SPRINGFIELD AND Adm’r of the Estate of May Deceased, F. Philippart, Plaintiff-Appellant Cross-Appellee, (Howard GALMAN, ANGELA al., S. Defendant C. Dobson et Defendants-Appellees Cross-Appellants).
Fourth District No. 4 — 97 — 0599 Argued May Opinion filed November 1998. *3 (argued), Alexandra Londrigan De Saint Phalle and F. of Thomas both Londrigan, Randle, PC., Potter & Springfield, appellant. of for (argued), Kroll, Barry
James K. Horstman L. Murphy, Edward J. and C. Barry Montgomery, Montgomery, Ltd., Chicago, appel- all of Williams & lees. opinion
PRESIDING JUSTICE GARMAN delivered the court:
In May pedestrian, by November was struck Philippart, car driven Angela attempted defendant as she to cross Galman Lawrence Springfield Avenue in middle block. of the Plaintiff Bank), acting Bank on Springfield (Springfield
First and Trust behalf estate, jury in a trial conducted in March Philippart’s sued Galman and also defendants Archer April Springfield Bank named as (ADM), Dobson, Trucking, agent Daniels Midland Inc. and its Howard zone, illegally parked no-parking who an ADM tanker truck trial, obstructing Philippart the view of both and Galman. At Springfield Bank raised theories ADM and Dobson based on (Nuisance Act) negligence and violation of the Public Nuisances Act (111. 26(5) (now 5(5) IOOV2,par. Rev. Stat. ch. 720 ILCS 5/47— (West 1996))). jury Philippart, returned a verdict in favor of al- her, Galman, ADM locating comparative fault between and Dob- son. arguing impermissible Bank to allow
Springfield appeals, was the jury damages Philippart’s comparative to reduce fault under theory. cross-appeals, it was entitled to a arguing theories, directed verdict on both the nuisance damages the trial court should reduced the because of benefits have provided Maladie, French Philippart by l’Assurance social secu- rity system. We affirm. BACKGROUND
I. р.m. day Philippart, Around 3:30 in November an 18- one year-old foreign student, walking exchange French was home Springfield High driving School. Motorist Richard was south Williams couple stop sign on for a minutes at a English stopped Street English intersection of and Lawrence Avenue. Motorist Stan Street, En- Squires driving Douglas south on one block west of was Street, glish approaching Douglas the intersection of and Lawrence. Williams, According heavy traffic was medium to because of the day. Philippart time on of Williams observed walk down sidewalk English right and turn and continue walk on the sidewalk on the crossing Squires north of Lawrence testified side without the street. En- could have used the crosswalk at the intersection of Philippart glish and Lawrence. leased
A truck owned ADM and to Dob- tractor-trailer tanker with its eastern-most son was on north side Lawrence end at the of Lawrence and 41 feet west crosswalk intersection Williams, According to English. long. The ADM truck 62.5 feet of Philippart. the truck was an obstruction to his view as well as that Squires get had to into the intersection to better view creep forward *4 the his oncoming of westbound traffic because truck obstructed view. Lawrence, he walk off the Philippart turned onto saw Squires As truck, corner of ADM where she proceed and the frоnt the sidewalk oncoming Philippart could see stopped. According Squires, head the traffic lanes from peeking westbound traffic her into Philippart stepped stated until from Squires behind the truck. truck, the a west could not see her. At this mo- heading behind driver ment, car, Galman, 16-year-old girl, a on driven was westbound truck, Philippart car clear the ADM Squires’ Lawrence. waited steps very pace, oncoming then took apparently slow noticed lVa traffic, mirror, Squires and then ran across the street. In his rearview Philippart. saw Galman’s car veer left and then strike After traffic right, coming cleared from Williams nosed out to check traffic from the other side of the truck and noticed the accident. France,
Philippart returned to where she was treated for her (Farmer’s injuries. Bank), Illiopolis Farmer’s State Bank acting as guardian Philippart, January filed in suit Galman 1990. In January it complaint naming filed an amended ADM and Dob- alleged son as additional negligent defendants. It Dobson was in il- legally in parking a truck so no-parking zone that it obscured the motorists, path including Galman, view and pedestrians, includ- ing Philippart, thereby causing the accident. died her in
Philippart injuries July from 1991. She had received 2,490,371.50 ($452,794.82) French in francs benefits from l’Assurance Maladie prior January to hеr death. In Bank again Farmer’s amended complaint, substituting interest, its in itself successor Bank, Springfield special as administrator of Philippart’s estate. The alleged amendment also public and Dobson created a by obstructing or encroaching upon public highways.
A jury trial April was held March and and the above that, Squires testimony Williams was heard. Dobson testified p.m. parked around 3 he in the westbound lane Lawrence home, directly about block from his of a sign prohibiting front parking there from sign 7 a.m. to 6 Dobson misread p.m. only believed legal place this in the area to park truck at the time. Dobson was aware there were 10 schools the area and most of dismissing these schools would be students at the time the truck was When parked there. Dobson returned to his truck about ah there, parked hour after he being up, when the accident was cleaned police officer issued being illegally parked. him ticket for Baker, reconstructionist,
Lewis an accident testified that when the Lawrence, tractor-trailer was curb along north extended feet into the 22-foot-wide westbound lanes of Lawrence. Baker an testified truck would not have been obstruction to Phil- if ippart’s view she of English crossed Lawrence the intersection Lawrence, but it would an if have been obstruction she crossed *5 Kostur, Douglas a former Joseph of and Lawrence. the intersection Illinois, the the safety manager for State of testified district traffic traffic and a hazard huge ADM truck constituted obstruction to was traffic, made including pedestrians. Kostur it to concluded to at its intersection Philippart unsafe for cross Lawrence Avenue English have a of traf- good because she did not view eastbound with go Philippart this unsafe condition caused to to fic. Kostur testified of the front the truck view both directions. city engineer City of Habegger,
Ronald former traffic for that, according study performed to an accident Springfield, testified (two accident, the intersection of MacArthur Lawrence before accident) one traffic ac- east of the was number site of blocks testified traffic Springfield many years. Habegger cidents counts 4 significant p.m. p.m. indicated westbound traffic 3:15 between free of Habegger adversely stated vehicles affected the flow day. depending traffic on time of finding Bank, jury Springfield
The returned verdict in favor of fault, fault, finding together ADM Dobson 50% at Galman 5% at damages Philippart jury awarded of million $1 45% fault. by Philippart’s contributory the award 45% due to and then reduced 1997, motion, posttrial ADM and filed а negligence. April In Dobson for her claiming family already had been reimbursed Philippart’s in France Maladie. This motion was expenses medical l’Assurance 1997, Springfield seeking In Bank filed a motion new May denied. trial, verdict, con- judgment notwithstanding the and odditur because This motion tributory negligence is a defense a nuisance suit. denied.
II. ANALYSIS A. Directed Verdict ADM the trial erred argues cross-appeal its court presents for a Because this denying its motion directed verdict. issue, deciding appeal. Philippart’s we it before threshold address case, aspect most favor all the in a when its When evidence viewed in motion, ovеrwhelmingly favors the party opposing able to the so stand, a contrary verdict based on that evidence could movant no Co., & R.R. appropriate. directed verdict is Pedrick v. Peoria Eastern (1967). 504, 513-14 Ill. 2d 229 N.E.2d ADM to a directed on the argues was entitled verdict duty Philippart. any did not owe negligence count because Dobson 132, 139-40, 554 N.E.2d Corp., v. K mart Ill. Ward (1990). pedestrians no duties to argues generally ADM drivers have However, under the in violation of the traffic code. jaywalking are who (Vehicle due Code), every duty driver has the Illinois Vehicle Code provisions of hitting pedestrian, notwithstanding care to avoid other 95V2, ch. 11—1003.1. Sev par. Vehicle Code. Rev. Stat. contributory negligence imply eral with a driver’s duties dealing cases walking highway extend to are on the violation of the Ve those who 688, 692-93, Johnson, Riley hicle Code. See (1981); Kenar, 371, 376-77, N.E.2d Kordik v. (1969); Rust, Rowley N.E.2d 383-84 (1940) (“[t]he right pedestrians to use right”). is a highway fundamental municipalities relies on cases that decline to hold liable to
jaywalking pedestrians poor they care of roads are not permitted Village intended users the roads. See Curatola v. Niles, 201, 208-09, (1993); Wojdyla 154 Ill. 2d 885-86 Ridge, v. City 417, 422-26, Park 148 Ill. 2d 1101-03 limiting municipal These decisions have relied on statutes *6 (see (West 102(a) liability 1992); defendants’ 745 ILCS Wojdyla, 10/3— 1101-03) 422-26, 148 Ill. 2d at at 519 N.E.2d and the intolerable burden duty place such a would municipalities on whose duties al ready extend persons (Vaughn City to broad class of West v. (1995)). 164, 1115, Frankfort, 155, 166 Ill. 2d N.E.2d Neither applies nonmunicipal rationale to a In Vaughn, defendant. the supreme court specifically general declined to not jaywalk. issue a mandate to See Vaughn, 164, 166 Ill. 2d at N.E.2d at 1120. argues
ADM
Dobson
legal duty
preserve
had no
to
an unobstructed
Mierzwa,
42, 49-50,
view of traffic for others.
v.
See Ziemba
Ill. 2d
1365,
(1991);
Witmer,
254,
566 N.E.2d
v.
Pyne
App.
159 Ill.
3d
(1987),
512 N.E.2d
996-97
on other
129 Ill.
grounds,
aff’d
(1989) (in
context).
2d
However,
ADM parking next attacks the use ordinance as evidence of negligence. parking provisions Similar of the Vehicle Code have been interpreted protect pedestrians pеrsonal injury. 113, 116-17, Authority, 3d
Moody Chicago App. Transit Inc., (1974); & Dyers, v. Oak Park Cleaners N.E.2d Schiff App. 2d 132 N.E.2d 419-20 Sheehan v. Janesville Transport, Auto 102 Ill. 134-35 (1981), The by ADM, distinguishable. relied is Sheehan court upon specific parking relied on the fact the ordinance at issue addressed intersections, did intersec- and the accident not occur near an near dicta, stated, The Sheehan court even albeit in ordinance was tion. Sheehan, designed protect pedestrians in the road. 513, 430 134-35. not sympathetic argument party
We are to ADM’s should be his meter simply parking held liable tort ran out only time We reach a different result if the ev- wrong place. would if However, even negligence parking idence of were the violation. determinative, not because it parking violation is it is still relevant parking on notice that in this area at put would reasonable driver which, dangerous. along time It is evidence with other may this be facts, pedestrians being such as in the area and foreseeability obstruction, support finding large negligence. size of the can negligence on argues
ADM
it is entitled to a directed verdict
not
of the ac-
proximate
count because the
truck was
cause
argument against Springfield
cident. It raises a similar
Bank’s
theory.
McDonough
Hospital,
See Curl v.
District
(1986)
796, 801-02,
(defining
the causa-
standards).
negligence
tion element in a nuisance case
reference to
heavily
cause of an
relies
on the distinction between the
If
injury
injury and a mere condition that allows an
to occur.
nothing
furnish
defendant’s
does
more than
a condition
injury.
injury
possible,
proximate
is made
it is
cause
which
it,
oc
injury
actually produces
cause of
while the
an
that which
agencies
for causal
to act.
provides
opportunity
casion is
which
an
*7
290,
Cook,
Ill. 2d
609
294
County
154
N.E.2d
Thompson
of
fact,
not
In
it has been noted
rigid
This distinction is
a
formula.
any given
determining
little
in
the outcome of
the distinction is of
use
896,
Bell,
901
App.
See Benner v.
236 Ill.
3d
602 N.E.2d
case.
(2d
20.6,
(1992);
Gray,
§
4 F.
F.
& O.
Torts
at 173
еd.
Harper,
James
1986).
conflicting
parked
in cases
a
Courts have reached
results
where
Compare
path
obscured the view
of others.
Baker Cities
vehicle
(1943)
143-44,
284,
Co.,
Ill.
N.E.2d
284-85
App.
Oil
321
52
Service
accident),
condition,
mere
not a cause of
and
vehicle is a
(parked
553, 562-63,
Co.,
Ill.
Telephone
App.
v. Illinois Commercial
Walker
(1942) (same),
Chicago,
City
Scerba v.
412, 416-17
with
43 N.E.2d
of
(1996)
435, 440-41,
(parked
Ill.
315-16
App.
N.E.2d
cause,
condition,
accident),
Schiff,
mere
of an
vehicle is a
not a
(same).
9-10,
N.E.2d
419-20
App.
Ill.
2d at
at
cause
Ultimately, the distinction between condition and
is a
analysis
always
factors
when
fact-specific
of several
considerеd
if
determining proximate cause. A circumstance is a condition
come
in a
operation
posi
forces set in
the defendant have
to rest
apparent safety
tion of
some new force intervenes. Duncan v.
Rzonca,
(1985),
App.
Ill.
615-16
cit
(4th
1971).
ing
Prosser,
42,§
W.
Torts
at
ed.
factors
Relevant
created,
gravity,
include
kind of
relation in
hazard
was
its
its
time and
to the
the defendant
reason
space
injury,
whether
could
ably
injury
likely
foresee that an
would
a
of
be
result
his conduct.
Scerba,
3d at
The scope duty, issue like the a defendant’s questions Benner, policy. also involves 236 Ill. App. 3d at N.E.2d at We are more likely danger to conclude the created the defendant has come to rest there justification when is some social any risk that remains. The court a illegally Scerba held bus block- cause, a ing condition, was a noting crosswalk not a mere after there presence Scerba, was no reason for the bus’ there. 284 App. 3d at 440, 672 Walker, N.E.2d at 316. In telephone company a truck parked condition, in the street accident, was not a cause an but it had few options park but to there when replacing telephone Walker, pole. 562-63, 315 Ill. App. at gas at 416-17. Baker found a city on a unloading gasoline street storage into tanks at a fill- condition, ing station accident, was not a cause of an after only com- menting utility Baker, on the social gas trucks. 143- 44, 52 284-85.
Finally,
the relationship
we focus on
between
circumstances
created by the defendant and the intervening
giving
force
rise to the
injury. In almost
in
all cases
which circumstance is deemed condi-
cause,
tion rather than a
the original wrong
remote,
somehow became
unimportant,
mere aside when considered
the new and
negligent
unforeseeable
conduct
the immediate cause of the
Scerba,
injury.
ing negligence more than a location where the driver’s 2d at N.E.2d at 294. Thompson, tion. Ill. conclusion, matter require The do not as a facts this case Scerba, law, Like in proximate that no cause existed. the defendant Walker, and had no and unlike the defendants Baker Dobson zone. justification parking no-parking for the truck in the in Thompson, Philippart Unlike the driver’s conduct the actions of new, indepen- and Galman did not constitute some unforeseeable intervening force. dent Dobson’s conduct cannot be excused Galman, negligence of because Galman’s conduct was still foreseeable. case, Benner, Ill. App. See 602 N.E.2d at In this Walker, testimony parked po- unlike Baker and there was vehicle’s erratically as sition forced drivers not involved in the accident to drive they navigated may drop around A a veil over the it. defendant highway responsibility and claim no when an accident occurs because the veil is a mere condition.
It was
that
be in the area
pedestrians
also foreseeable
would
because the truck was
near several schools
a time when
Scerba,
at 440-
dismissing
schools were
students. See
(bus
condition,
ac-
(1983) (proximate
dumpster
was an
of fact
cause
issue
when
it
by defendаnt near school and it was foreseeable would block
placed
children).
pedestrian
the vision of both
drivers
path
Philippart may
It
no
that
have had a safer
available
is
excuse
Scerba,
her, given
still
path
she chose was
foreseeable. See
took
jury
Philippart’s
3d at
B. Whether Negligence for Contributory damages reduc- argues Bank it is entitled without Springfield recovery contributory argued it also tion and, is not argues, contributory negligence under Nuisance Act Springfield suit. Bank claims the conduct of a defense to a nuisance Act that Dobson, agent, Nuisance provision ADM’s violated upon public “[t]o declares it a obstruct or encroach public streets, commons, ways, alleys, landing places, highways, private 26(5) IOOV2, ways par. ch. burying places.” Ill. Rev. Stat. (West 1996)). (now 5(5) 720 ILCS 5/47— a private counters the Nuisanсe Act does not create cause of *9 It been a action other types
action.
has
assumed
create
cause of
Inc.,
People
Processing,
nuisances. See
ex rel. Burris v. C.J.R.
public
(1995).
1035,
1013, 1019,
Ill.
3d
N.E.2d
App.
269
647
1039
Gilmore,
Ill.
merely
App.
Nuisance Act
declares the common law.
261
law,
661,
party
bring
3d at
Ultimately, however, we do not decide whether the Nuisance gives private Act to a rise cause of action here because we conclude that, does, if it appropriate would still be reduсe award Philippart’s because of contributory negligence. Because the Nuisance is a simply (Gilmore, Act declaration common law 261 Ill. App. 661, 992-93), 3d at 633 N.E.2d at look to we the common law to aid in (People Clark, 156, 162-63, its construction ex rel. v. 268 Dyer Ill. 108 (1915)). 994, recognize N.E. 996 Earlier contributory Illinois cases a negligence Co., McEniry Tri-City defense to a nuisance. v. 254 Ry. Ill. 99, 102-03, 227, (1912), citing 98 N.E. 228 David M. Swain & Son v. Chicago, Co., Burlington Quincy 622, 627, 247, & 252 R.R. Ill. 97 N.E. (1911), Reynolds, 212, 249 v. Ill. 213-14 53 Pfau Springfield Bank cites several subsequent Illinois cases that state contributory a new rule negligence is a not a defense to nuisance claim. See Superior Bedding Co., Menolascino v. Felt & App. 313 Ill. 557, 571, 813, (1942); N.E.2d Khan, 40 819 Woods Ill. App. 95 3d 1087, 1090, 1028, (1981); 420 Thompson, N.E.2d 1031 Turner v. 102 838, 842, 157, (1981); Ill. 430 N.E.2d 161 Wheat v. Freeman 14, Mining Corp., 17-18, 290, Coal 23 Ill. 319 App. 3d N.E.2d 294 (1974); Drive-In Belmar Theatre Co. v. Illinois State Highway Toll (1966) (in Comm’n, 788, dicta); 34 Ill. 2d 791 cf. Galva, City 598, 602-03, 453, Johnston v. 147 N.E. 454 (1925) (property mitigate damages owner had no obligation to from a nuisance), public Casey Baseden, 111 Ill. 2d (1986) 4, 6 (contributory negligence is similar in effect a failure to mitigate damages).
However, several of these rule in cases state this limited terms. Belmar, 548, 791; Ill. Turner, See 34 2d at 216 at 102 Ill. App. N.E.2d 762 (1957) 161; § Prac. 13 430 at 29 Ill. L. & Nuisances at N.E.2d
(contributory
“ordinarily” not a defense in a nuisance
negligence is
566-67,
action); Menolascino,
(relying
Ill.
at
The cases cited
Bank involve a defendant’s use of
contributory
property.
negligence
real
Commentators have noted
particularly inappropriate
type
in this
defense
“classic”
Annotation, Contributory
assumption
suit. See
risk as
views,
damages
to action
nuisance —modern
defense
(seсtion
(1960)
3(a));
A.L.R.2d
58 Am. Jur.
Nuisances
(2d
(1989);
22.8,
§
§
4 E
Gray,
F. James & O.
Torts
Harper,
1986). However,
has
contributory negligence
ed.
defense
been
did
real
but
recognized
property
where the suit
not involve
instead
Philippart,
injured
travelling
like
while
plaintiff,
involved
who
227;
way. McEniry,
Swain,
on
public
N.E.
*10
247-48;
213; 4 F.
Pfau,
Harper,
252 Ill. at
N.E. at
The Restatement
contributory
negligence gives
defense
a defendant’s
negligence
where
(Second)
840B(1),
§
of Torts
rise to the nuisance claim. Restatement
Annotation,
(1979);
Contributory negligence
assump
d
Comment
damages
as
action
nuisance —modern
tion
risk
to
defense
from
of
(section
(1960)
cases);
1378,
4, collecting
views,
A.L.R.2d
1387
73
Mich,
463,
922;
City
Ni
169
at
McFarlane
Young, 382
at
N.W2d
of
347,
391,
(1928);
Falls,
340,
66
agara
247
160 N.E.
393
C.J.S.
N.Y.
(1989). II-
(1950);
§
§§
11
Am.
2d Nuisances
448-49
Nuisances
58
Jur.
law of
the nuisanсe law
generally parallels
linois common
(Second)
Gilmore, 261 Ill. outlined in the Restatement
of Torts.
660,
992;
Litiga
N.E.2d at
see
In re
Flood
generally
Chicago
(1997).
179,
tion, 176 Ill. 2d
Springfield argues support evidence did not a claim of contributory negligence. affirm jury’s finding contributory We it is of the weight the manifest evi- 241, 250, Albaugh dence. See Cooley, (1981). attempted to Philippart cross Lawrence Avenue from behind staying ADM’s truck rather than on the sidewalk until she reached a safely she point According which could cross. to Squires, Philippart oncoming traffic, noticed delayed, and then decided to run across the street.
C. Damages Whether Should Be Philippart’s Reduced Because of Payments
Benefits argues damages pursuant is entitled to reduce the (Law) (111. section 2—1205.1 Civil Practice Stat. Law Rev. 1205.1) 110, par. ch. because of benefits received by Philippart 2— from a collateral source. parties argue govern The whether the French ment right recoupment that, 1205.1(2), retains a under section 2— limit ADM’s ability would to reduce damages. Rev. Stat. ch. 1205.1(2). 110, par. Foreign proved law must be as a matter of fact. 2— Osborn, In re Marriage (1990). proving defendant has the burden of the collateral Gutta, source does not retain a right recoupment. See DeCastris v. 237 Ill. App. 3d
Springfield Bank submitted translation of a French statute (referred Tiers, “Chapitre as 6-Recours des Caisses Contre Les Sociale”) Article seq.” L.376—1 et la “Code de Securite provides may any judgment against 1’Assurance Maladie recover from third party injury for an paid which it benefits. The statute *11 provides injured party bring the lawsuit agency shall the into the so it “profit judgment.” Finally, provides can from the common the statute any judgment against l’Assurance Maladie can annul a third such party if the agency was not included in the suit. Mala- l’Assurance appropriate a reduction is argues never made because it was right recoupment its perfected
die never of the Law is Section 2—1205.1 disagree. to the suit. We party rule, provides which law collateral source of the common derogation plaintiff the by received decreased amounts damages are not Inc., 131 Group, health insurance. Wilson accident or Hoffman (1989). derogation Statutes language than the any extended further will not be the common law implica- clear terms or absolutely requires by express its statute the W.W., In re tion. right there exists a reduction when 2—1205.1 allows Section right. of that No require perfection explicitly but does not recoupment into the suit bring agency failure to party’s established evidence recoupment under agency’s right to a waiver of amounted in the suit agency include the if failure to French statute. Even reasonably court could generally, the trial to a waiver amounts hеre, may not have the alterna- agency it does not where conclude Roth, Roth v. law, judgment. annul the tive, international under Cf. (1882) (a effect have no extraterritorial country’s laws country). foreign in a their enforcement as to authorize so
III. CONCLUSION above, judgment affirm the we For all of the reasons stated court. trial
Affirmed.
COOK, J., concurs. STEIGMANN, dissenting: JUSTICE disagree I thought, much opinion reflects Although majority be- dichotomy distinction analysis of the with its cause/condition —the an that allows a mere condition injury an the cause of tween in this of the truck parking I that the Because believe injury to occur. occur, I injury to that allowed the a conditiоn merely constituted case respectfully dissent. strongly dichotomy has been
Although cause/condition (see 204, 478 N.E.2d at Duncan, 3d at criticized (1985) (“the now almost and condition is between cause distinction has nonetheless of Illinois discredited”)), Supreme Court entirely N.E.2d at Ill. 2d at Thompson, it. In recently reaffirmed following: “If a defendant’s wrote the supreme court injury a condition which than furnish nothing more negligence does injury.” cause of proximate not the negligence possible, is made *12 county negligent In that the was Thompson, plaintiffs argued the of a the road failing adequately in to warn motorists curve on where occurred, they expert testimony presented the automobile accident support 154 Ill. 2d Thompson, to that contention. at N.E.2d 292. in the of the Thompson at The evidence also showed that driver in a drunk and plaintiffs passenger car which decedent was was driv- Indeed, at an rate of was ing speed. ultimately excessive the driver facts, convicted of homicide to these prison. reckless and sent On the supreme court concluded that the driver’s were the sole actions the that proximate cause of accident and the condition of the road provided nothing more than the where the driver’s location Thompson, cаme to fruition. 2d at at 154 Ill. The majority opinion attempts distinguish Thompson on the ground dichotomy rigid that the “is formula” not a cause/condition a resolving fact-specific analysis this distinction “is of several always determining proximate factors considered when cause.” 299 Ill. However, find App. opinion’s at I the majority 758-59. efforts unavailing, particularly light prior in applied case law that the dichotomy to parked vehicles and concluded that the cause/condition presence condition, a those vehicles constituted not cause. Walker,
The first case is App. such at at N.E.2d 413-14, parked where defendant’s truck major thoroughfare was on a Marion, Illinois, in Parking” sign. near “No had The truck a trailer 30-foot-long telephone attached on which a pole loaded. The was truck together and the trailer long, pole were about feet the extended another 13 the feet over back of trailer. was parked the The truck sev- Walker, eral feet from nearest App. 555-56, the at intersection. N.E.2d at 413-14. Two automobiles collided street the truck on the where was (who cars) parked, and the in one of plaintiff was claimed that the other driver could not see him telephone company appellate truck. The сourt truck parked concluded was not proximate that particular cause accident and reversed. “[A]t time, company [the did telephone nothing more than furnish a truck] by condition the injury plaintiff possible.” which to the was made Walker, Ill. at 416. Baker,
The second is case 52 N.E.2d at which the company parked gasoline city defendant its truck on a street unload gasoline underground storage filling into tanks at station. parked, While truck was so child from behind the small came truck and was struck car. The trial court passing dismissed plaintiffs complaint, and the court In appellate holding, affirmed. so court explained nothing thаt if a act or does negligent omission such making injury possible, an
more than furnish
condition
condition,
a third
causes
subsequent independent
person,
act of
by the
injury,
acts
and the existence of the
an
the two
are not concurrent
proximate
injury.
cause of
The Baker court
condition is not the
motion, but
“[The defendant’s]
concluded as follows:
was
parked
position
persons,
***.Its
the street
obvious to all
upon
was
necessary
traveling pub-
and a condition
to be reckoned with
Baker,
lic.”
but those efforts park potentially liability upon milliоns of dollars of motorists who questionable policy. their cars illegally sight city A is the United Parcel Service every familiar truck, Express typically illegally lights Federal with its hazard on, indicating frequently that the driver will return soon. One also *13 frequently illegally parked they sees other when are involved vehicles at after- delivering pizzas, picking up dropping or off children commonly parked, school Such vehicles are however activities. along busy and fine temporarily, no-parking zones streets. Ticket must, upon if court not take it itself to ought those drivers we but this subjects illegal parking decide that these motorists to millions such liability. dollars civil ILLINOIS, Plaintiff-Appellee,
THE THE DERICK PEOPLE OF STATE OF ELLIOTT, Defendant-Appellant. E. Fourth District No. 4 — 97 — 0802 Opinion filed November